Sri Lanka: farewell to the rule of law?

By Savi Hensman

January 19, 2013

In Sri Lanka, government ministers set out to centralise power in their own hands. When supreme court judges ruled against a police officer for illegal arrest, thugs were sent in buses to surround their homes and shout abuse and threats. The year was 1983.

Recently Sri Lankan ministers have been even more blatant in attacking the independence of the judiciary.

Power has increasingly been concentrated in the hands of President Mahinda Rajapakse and his brothers Gotabhaya, the defence and urban development secretary, Basil, the economic development minister and Chamal, the speaker of parliament.

In late 2012, when the chief justice ruled that it was unconstitutional for parliament to agree a bill giving Basil Rajapakse’s department greater power without provincial councils’ approval, she found herself facing impeachment.

Chief Justice Shirani Bandaranayake was accused of misuse of power and failure to declare her assets. The process used against her was ruled unlawful by the supreme court, but went ahead anyway, despite protests from some opposition MPs. Several members of the parliamentary select committee set up to examine the charges against her did not even pretend to be impartial.

Many protested. In the words of the Central Council of the Congress of Religions in Sri Lanka, “the Government appears to have been motivated more by a series of decisions of the Supreme Court in recent times, which went contrary to its expectations, than by a prima facie case for impeachment. If that be the case, the independence of the Judiciary, which is a cornerstone of a democratic polity and the last bastion of Justice for the people, will be in grave jeopardy.”

In addition she had not “been given adequate time to respond and prepare her defence, time usually allocated even to ordinary litigants in regular court cases”.

But top politicians chose not to heed the concerns which were being aired, seeking instead to increase their own power.

In January 2013, when the controversial economic development bill was passed, a triumphant Basil Rajapakse declared that MPs who had voted against it were traitors. Large sums of funding for rural development are now under his control.

As parliament considered a motion to confirm the findings of the select committee, anti-impeachment protesters were intimidated by stick-wielding thugs.

On 11 January, the opposition pointed out that the resolution and vote were not even on the agenda for that day’s parliamentary proceedings. Instead, the agenda contained an earlier motion to start the impeachment process. This listed 14 charges against her rather than the 3 of which she had been found guilty.

Nevertheless speaker Chamal Rajapakse decided to press ahead with the vote. When the government won, some ministers joined a mob of pro-government demonstrators. Some of these had been bused in from many miles away to mill around parliament and surround the chief justice’s residence.

Fire-crackers were set off to celebrate an historic victory over one of the few remaining obstacles to absolute rule by the Rajapakse brothers and their appointees.

Many protested, in Sri Lanka and internationally.

MA Sumanthiran, an MP and distinguished lawyer, pointed out the vital need for “proper checks and balances among each of the three arms of government, namely the parliament, the executive and the judiciary”, and that “Democracy is by no means majority rule alone, but necessarily entails respect for human rights and the rule of law”. Otherwise citizens are subject to the absolute power of rulers.

The impeachment has “thrown into chaos the entire system of checks and balances in the country,” said Sam Zarifi of the International Commission of Jurists. “Sri Lanka’s parliament and executive have effectively decapitated the country’s judiciary in pursuit of short term political gain”, which has “precipitated a legal and constitutional crisis of unprecedented dimensions”.

The president declared that she had been removed from office, though lawyers made it clear that they did not accept the ruling. He bypassed existing supreme court judges in the running for the position, instead appointing his staunch supporter Mohan Peiris as chief justice despite his evident unsuitability.

UN High Commissioner for Human Rights Navi Pillay pointed out that “the former Attorney-General and Legal Advisor to the Cabinet, Mr. Mohan Peiris, has been at the forefront of a number of government delegations to Geneva in recent years to vigorously defend the Sri Lankan government’s position before the Human Rights Council and other human rights mechanisms. This raises obvious concerns about his independence and impartiality, especially when handling allegations of serious human rights violations by the authorities.”

Notoriously, in November 2011 in Geneva, he claimed to the UN Committee Against Torture that the Sri Lankan government had information that missing journalist Prageeth Ekneligoda was alive and secretly living outside Sri Lanka. But when summoned before a magistrate in Sri Lanka, in the presence of Ekneligoda’s wife, who was desperate to know what had happened to him, Peiris changed his story. He claimed he could not remember who informed him that the journalist was overseas, and that the government had no idea what had become of him

Commonwealth Secretary-General Kamalesh Sharma was another key figure who expressed dismay at the impeachment. It is possible that the Commonwealth Heads of Government Meeting due to be held in Sri Lanka later in 2013 will be moved elsewhere.

The Sri Lankan state has become increasingly dictatorial and heavy-handed, alienating people ranging from fishermen hit by rising fuel prices to students and staff at Jaffna University. Journalists critical of the Rajapakse brothers have been killed or forced to flee. This, too, has echoes of the 1980s.

At that time, over-centralisation of power and brutal state repression alienated large numbers of people, both among minorities and the Sinhalese majority. Thugs sponsored by politicians were let loose on workers trying to organise for better pay and conditions. Elections were interfered with or even suspended, ethnic cleansing carried out.

As legitimate channels of protest were shut off, some – especially youth – were drawn into ruthless rebel groups, including the Tigers, who themselves violated human rights on a major scale.

Large numbers of people were killed, injured or lost their homes as violence spread. Many 'disappeared' at the hands of military or paramilitary forces, and civilians found themselves caught between rival armies neither of which observed the rules of conflict meant to protect non-combatants.

When those in power disregard human rights and undermine the rule of law, the results can be horrific.

It is to be hoped that, today, non-violent means of resistance will be used, as Sri Lankans and those who care about Sri Lanka seek to defend democracy and civil liberties. If even top judges can be treated in such a cavalier manner, ordinary people are at serious risk unless the situation changes and the rule of law is secured.

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